' These suo motu proceedings under section 13 of the Consolidation of Holdings Ordinance, 1960 have been taken up on the request made in the letter dated 2-4-1978 of the Joint Secretary to Government of Pakistan, Ministry of Religious Affairs, saying that the land belonging to the Evacuee Trust Property Board in the revenue estate of Mianke More (Bhai Phero), Tehsil Chunian, District Kasur, had been obtained, in exchange, by Rana Phool Muhammad Khan and others during the consolidation proceedings finalized on 30-9-1968, and may be retrieved by the Board of Revenue by exercise of its suo motu revisional powers under section 13(1)(a) of the Ordinance.
2. The brief history of the case is that the consolidation of holdings operations were undertaken in the revenue estate of Mianke More (Bhai Phero) and final scheme was confirmed by the Assistant Consolidation Officer, on 30-9-1968, under section 10(3) of the Consolidation of Holdings Ordinance, 1960 (hereinafter to be referred as "the Ordinance"). Ever-since it has been agitated from various quarters that an area of 1,327 Kanals, 18 Marlas belonging to the Evacuee Trust Property Board (hereinafter called as "the Board") and lying in a compact block, had been collusively and fraudulently exchanged with an inferior and over scattered area of the respondents, Rana Phool Muhammad Khan and others. The matter was got probed into by the Board of Revenue and it was found that the Trust land had, in fact, been exchanged in favour of the respondents with the consent of the representatives of the E. T. P. Board and warranted no interference. Nevertheless, the Board preferred an appeal against the exchange of its land before the Collector (Cons.), Kasur, but it was dismissed by him vide his order dated 20-12-1969, on the main grounds that the exchange had been consented to by the representatives of the Board themselves and that the appeal was barred by time. Likewise the appeals filed by S. Muhammad Younus and S. Akhlaq Hussain against the exchange of the Trust land held by them on lease were rejected by the Collector (Cons.) on 11-8-1969 and subsequently their revision petition filed before the Additional Commissioner (Cons.) and the Member (Cons.), Board of Revenue also failed on 10-5-1971 and 10- 6-1971, respectively, on the main ground that they had possessed no ownership rights and as such could not claim the land held by them as lessees/tenants.
3. In the meanwhile the new Secretary, E. T. P. Board, visited the spot on 29-1-1970 and reported that the land given to the Board in exchange was equally good, whereupon the Chairman of the Board decided not to further resist the consolidation proceedings before the higher Courts, and accordingly wrote a letter dated 4-2-1970 to the Deputy Commissioner/ Chairman, Trust Committee, Lahore directing him that the "land received in exchange should be recovered and properly maintained."
4. The matter being again agitated by a P. P. P. Worker from Bhai Phero before the then Prime Minister of Pakistan, the Secretary to Government of Pakistan, Ministry of Social Welfare, Local Government and Rural Department wrote a D.O. Letter dated 18-4-1976 to Mr. Aslam Avais, Member (Consolidation), Board of Revenue as he then was and now deceased, advising him to rectify the wrong by setting aside the consolidation proceedings of the village by exercise of his suo motu revisional powers under section 13 of the Ordinance. The Member (Consolidation), however, declined suo motu interference and replied to the Secretary, vide his letter dated 19-5-1976, that the matter had already been fully examined in the Board of Revenue and found that the Trust land had been exchanged with the consent of the representative of the E. T. P. Board, who had signed the relevant khata in the Register Schemes, that the Secretary of the Board, who happened to be present on the spot, had also accepted the wanda and signed the khata, that the appeal filed by the Board before the Collector (Cons.) had been rejected as long ago as 20-12-1969 and that thereafter the Chairman of the Board had decided not to further challenge the consolidation proceedings before the Board of Revenue and had directed the Deputy Commissioner, Lahore vide his order dated 4-2-1970 that the land received in exchange during consolidation should be recovered and properly administered.
5. Being not satisfied with this reply of the Member, Consolidation, the Joint Secretary to Government of Pakistan, in the Ministry of Religious and Minorities Affairs, came up, once again, with the request, duly armed with an advice from the Ministry of Law, vide letter dated 2-4-1978 reiterating the advisability of the case being reopened and decided afresh by exercise of suo motu revisional powers vested in the Board of Revenue under section 13(1) (a) of the Ordinance. These proceedings were accordingly taken in hand and notices issued to the parties concerned for 19-5- 1982 to appear and present their objections, if any, against the proposed suo motu action by this Court.
6. The respondents questioned the validity of the notice dated 19-5-1982 in a writ petition (No, 1742/1982) before the Lahore High Court on the grounds, inter (.1ia, that the land in dispute having been exchanged with the consent of the representatives of the E. T. P. Board as early as 30-9-1968, and the appeal filed by the Board against the exchange of said land dismissed by the Collector (Cons.) on 20-12-1969 and thereafter the Chairman of the Board having decided not to further challenge the consolidation proceedings before any higher Courts, it was not open to the Member (Consolidation) to proceed in suo motu revision at that belated stage on a request/advice made by the Federal Government. This writ petition was disposed of by Irshad Hussain Khan, J, vide his order dated 4-12-1983 with the observations that he was not inclined to quash the impugned notice, inasmuch as an adequate alternate remedy was available to the respondents by raising the objection of jurisdiction before the Member (Consolidation), who, if such an objection was raised, should, in the first instance, dispose of the same after hearing the parties concerned, before proceeding with the merits of the case. With these observations the case was remitted to this Court for disposal..
7. Sh. Abdul Aziz and Ch. Subhan Khan, the learned counsels for the respondents, Rana Phool Muhammad Khan and others have argued, on the authority of this Court's judgment delivered in Suo Motu revision Petition No, 1631/1980 entitled "Muhammad Din and 3 others v. The State etc. (1), that as the case in hand had already been thoroughly examined in the Board of Revenue and decided by the then Member (Consolidation) vide his order dated 14-5-1976 holding that there was no justification to interfere in the matter judicially at that late stage, nearly seven years after confirmation of the Consolidation scheme, therefore, it was not competent to this Court to re-open the case by invoking its suo motu revisional jurisdiction under section 13(1) (a), on the advice/direction issued by the Federal Government. The Board of Revenue, the learned counsels argued, being absolutely unfettered in suo motu exercise of its jurisdiction under section 13 could neither be induced nor bound by any advice or direction of the Federal Government, and if it has proceeded on such advice or direction, then it will not be suo motu exercise of jurisdiction by it, but simply the compliance of the advice or direction of the Federal Government calling upon it to exercise that jurisdiction, which is not contemplated by the Statute. Be that as it may, the learned counsels went on to say, the new Misl Haqiat having been prepared and consigned in terms of section 15 of the Ordinance and the entire record returned long ago to the Mahal staff, the consolidation authorities have become functus officio in the matter and possess no power to interfere with the scheme after about 16 years of its confirmation or make any alterations in the entries duly incorporated in the Misl Haqiat and various succeeding Jamabandis.
8. It was also argued that the wanda of the E. T. P. Board was prepared and confirmed with the consent of its own representatives, who had signed the register schemes and the daily roznamcha of the Patwari in token of the acceptance and correctness thereof, that the new Secretary of the Board, Capt. Mahabat Khan', who had visited the spot on 29-1-1970, had approved the land received in exchange, and subsequently the Chairman himself had accepted this land and dropped the idea of filing further apppeal or revision before any higher Courts against the consolidation proceedings; therefore, the Board was completely barred by estoppel, waiver and abandonment to seek restoration of the exchanged land, nearly 14 years after the confirmation of the consolidation scheme when the nature of the land had mostly changed, through suo motu interference of this Court.
9. Mr. Fazal Hussain, the learned counsel, appearing on behalf of the Federal Government and the E.
T. P. Board, submitted that the evacuee Trust land vested in the Federal Government and could not be exchanged or otherwise disposed of without its previous approval or affording it an opportunity of being heard. Further that the consolidation of such land was really a fraud upon the statute, which could not be cured by any lapse on the part of, or consent given by the officials of the Board.
And since the fraud vitiates everything, the learned counsels argued, the mere fact that the wanda of the Board had been confirmed with the consent of its own representatives or that the land received in exchange had been subsequently accepted by the Chairman and leased out to
(1) PLD 1982 Rev. 2 various parties, could not operate as an estoppel against the Federal Government and even against the Board to debar them from seeking restoration of their valuable land exchanged by fraud and without the previous approval of the Federal Government. Nor it could, in any manner, affect the suo mow revisional jurisdiction of this Court to decide the case on merits in order to do complete justice in the matter and vacate the fraud committed upon the statute.
10. From the arguments so addressed by the learned counsels for the parties, the main questions that have fallen for consideration are :---
(a) Whether it was not competent to this Court to interfere with the consolidation scheme confirmed as long ago as 30-9-1968 by mutual consent and agreement of all the parties, by invoking, at this late stage, its suo mow revisional jurisdiction under section 13(1) (a), on the advice/direction issued by the Federal Government;
(b) Whether the previous approval of the Federal Government was a sine qua non for the exchange adjustment of the Trust land during the consolidation operations; and whether the approval/consent of the Board was induced by fraud;
(c) Whether E. T. P. Board after having accepted the land received in exchange and forebearing its right to resist the consolidation scheme by appeal or revision in any higher Courts was estopped to seek restoration of its pre-consolidation land, by invoking suo motu revisional jurisdiction of this Court.
11. Adverting to question (a) above it will be observed that the Board of Revenue is empowered to take up any case arising from any proceedings of consolidation, either of its own motion, at any time, in exercise of the revisional powers vested in it under clause (a) of section 13(1) of the Ordinance, or on the application made to it by an aggrieved person, within 90 days of the passing of such order, under clause (b) of that section and, after giving an opportunity of being heard to the parties to be affected, pass such order as it deems proper. But once a case has been decided by the Board of Revenue in revision either suo mow under clause (a) or on the application of an aggrieved person under clause (b), the order passed by it becomes final and unless reviewed within the limitation of 90 days, the case cannot be re-opened and decided afresh, in view of the finality attached to such order under section 7 of the Board of Revenue Act, 1957. As the case in hand has never been decided judicially by the Board of Revenue in exercise of its revisional powers either under clause (a) or under clause (b) of section 13(l), therefore, the mere fact that the then learned Member (Consolidation) had observed, during examination of the case on the executive side, that the case could not be taken up judicially at that late stage, does not operate a bar to taking up and deciding the case by this Court judicially in exercise of its suo motu revisional powers under section 13(1) (a), notwithstanding the expiration of any time. Thus, the objection that this Court has no suo motu jurisdiction to interfere in the matter at this late stage is not valid.
12. Similarly the objection that the advice/direction of the Federal Government could not be the basis for suo mow exercise of jurisdiction by the Board of Revenue has no merit. Reference in this connection is invited to this Court's decision in Muhammad Anwar and another v. Mst. Mumtaz's Begum and 17 others (1), wherein it has been ruled that suo motu jurisdiction!
(1) PLD 1983 Rev. 3Q vested in the Board of Revenue under section 13(1) (a) can be competently exercised on the basis of information coming to its knowledge from any source, which may even include any advice or direction coming from any Superior Authority, provided that it is not authoritative and has not bound the Board of Revenue in its discretion to invoke or not to invoke that jurisdiction. In the present case the advice/direction given by the Federal Government in its letter dated 2-4-1978 was not authoritative but simply persuasive and did not intend, in any manner, to interfere with the discretion of the Board of Revenue in the matter of exercise of its suo motu revisional jurisdiction.
The Board of Revenue had no obligation to follow this advice/direction but simply to take it into consideration and to attach such weight as it seemed to it to deserve. In fact the advice/direction of the Federal Government depended for its influence upon its own merits, nor upon any legal claim which it had to recognition. Thus, the Board of Revenue was at liberty to proceed or not to proceed upon such advice/direction, but if it has, then that would not be taken as simply the compliance of that advice/direction and not as suo motu exercise of jurisdiction by it.
13. As- to the question whether previous approval of the Federal Government was or was not necessary for the exchange/adjustment of the Trust land during consolidation proceedings we may refer to the Scheme known as "the Scheme for the management and disposal of property attached to charitable, religious or educational trusts or institutions" issued by the Chief Settlement Commissioner, under section 14(2) of the Displaced Persons (Land Settlement) Act, 1958. According to para. 18 read with para. 19 of the Scheme the general supervision of the Trust Property vests in the Board constituted by the Central Government under para. 3 of the Scheme, which shall do all things considered by it to be necessary, proper and expedient for the efficient maintenance, control, administration and disposal of such property, except, of course, the disposal by sale of such property, which shall be with the previous approval of the Central Government. Again, according to section 14(2B) of the Land Settlement Act, 1958, the Board constituted under the aforesaid Scheme will be a body corporate, having perpetual succession and a common seal, with power to hold and dispose of property, .And shall by the name given to it by the Scheme sue and be sued. This means that the authority to accord approval for any exchange or adjustment of the Trust land, which does not constitute a disposal by sale of such land within the meaning of para. 19( j) of the Scheme, vested in the Board and not in the Federal Government as the learned counsel appearing on behalf of the Federal C Government would have us to believe. So, the Board, being the competent authority in the matter had rightly authorised its representatives to signify the consent on behalf of the Board to the confirmation of the land to be given to it, by exchange or otherwise, during the consolidation proceedings.
14. The contention of the learned counsel that the Trust land had been exchanged by fraud seems to be based on mere conjectures. Fraud is meant as procuring of an advantage to another's detriment by inducing him or his agent to enter into a contract, by false representation or suppression of a fact with an intent to deceive. But in the present case there is nothing on record to suggest that the Board or its representatives had been induced to enter into a contract for the exchange of Trust land by misrepresentation or concealment of a fact with an intent to 'deceive, or by any misdemeanour or mistake committed by its representatives entrusted with a power-of- attorney for the adjustment of the Trust land, by exchange or otherwise, during the consolidation proceedings. On the contrary, the record shows that the Wanda of the Board was made mostly on its pre-consolidation land and only a small area as was considered necessary for the purpose of giving effect to the consolidation scheme was exchanged with the free consent of its representatives, not caused by any inducement, coercion, undue influence, fraud, misrepresentation or mistake.
15. It is also on the record that after the confirmation of the consolidation scheme, the Secretary of the Board had, at the request of the respondents, conducted an on the spot enquiry, on 29-1-1970, and having found nothing wrong with the land given in exchange to Board submitted a report ' to the then Chairman, who thereupon, accepted that land and dropped the idea of resisting the consolidation scheme by further appeals or revisions before any higher Courts and directed the Deputy Commissioner, Lahore that the land given in exchange be recovered and properly administered and since then it had been under the supervision and management of the Board and regularly leased out to different parties. As such, the Board cannot now dispute its own acceptance or declaration, which is conclusive against it. Nor it can be permitted, in contradiction of its former self, to prove what it now chooses to call the truthBeside being estopped by its own acceptance, the Board or any person claiming under, or on behalf of it, is also precluded, in view of section 6 of the Ordinance, to object to or interfere with any exchange or adjustment of the Trust land made for the purpose of giving effect to the consolidation scheme. In this view of the matter the Board is not entitled to enforce its claim for restoration of the land exchanged during consolidation proceedings, by invoking suo motu jurisdiction of this Court.
16. As for the merits of the case we find that the Board had in all 17,720 Kanals, 3 Marlas of land in village Mian-ke-More, which was scattered over as many as 15 plots. During consolidation it was not possible to keep the entire pre-consolidation land intact and certain adjustments were inevitable for the purpose of making proper Plotbandi, in accordance with the principles of consolidation. To achieve that object only an area of 1,198 Kanals 16 Marlas out of the total area of 17,720 Kanals, 3 Marlas belonging to Trust was adjusted with the area of other right-holders including the respondents, who in lieu thereof surrendered their own area bearing the same classification, in favour of the Trust. The remaining area of the Trust measuring 16,524 Kanals was consolidated into one compact block, which reduced the total number of its plots from 15 to 10. The representatives of the Board got fully satisfied with this arrangement and signed both the register schemes as well as the daily diary of the . Patwari in token of acceptance and correctness of the wanda including the land allocated in exchange to the Board. The land was also subsequently approved by the new Secretary and accepted by the then Chairman of the Board, who ordered that the land be recovered and properly administered. As such, no injustice has been done to the Board and it has no cause to grumble.
17. After the confirmation of the Scheme, the respondents and the other right-holders are reported to have made vast improvements on the land during the last 16 years. The nature of the land has considerably changed Some of the land has been built up and some other acquired by the( Government for the establishment of a Market Committee. A number of Ice Factories and Rice Shelters have sprung up on the site and a large tract comprising about 62 acres of land has come under the orchards growing mangoes and citrus fruit. In these circumstances it would not be just and fair to reopen the case and interfere with the consented scheme confirmed as long ago as 30- 9-1968, under suo motu jurisdiction of this Court.
19. In view of what has been discussed above this suo motu revision must fail and it is dismissed hereby.
PLD 1985 Rev. 34